285 S.W. 353 | Ark. | 1926
This is an action instituted by appellant against appellees to recover damages sustained by reason of the breach of an alleged warranty in the sale of cottonseed. Each of the parties to the action is engaged in the business of handling and selling cottonseed; and appellees sold 201 bushels to appellant, who purchased the same for resale to customers. It is alleged in the complaint that appellees expressly warranted the seed to be of a certain brand and of a certain percentage of fertility. The answer of appellees contained a denial of the warranty, and denied that the seeds were infertile to any appreciable extent. There was a trial of the issues before a jury, which resulted in a verdict in favor of appellees.
Appellant testified that appellees made an express warranty as to the quality and fertility of the seed, but there was a conflict in the testimony, and the court correctly submitted that issue to the jury. The verdict is therefore conclusive on that issue.
When all of the testimony had been introduced, appellant asked leave of the court to amend his complaint so as to charge an implied warranty and the breach thereof. The court denied the request, and an exception was duly saved. Appellant also asked the court to give certain instructions submitting the issue of implied warranty and the breach thereof, but these requests were denied. The request for leave to amend the complaint by changing or adding to the cause of action originally stated was one which was addressed to the sound discretion of the trial court, and on appeal the exercise of that discretion *613
will not be disturbed unless an abuse thereof clearly appears. Rucker v. Martin,